ICC still a deterrent despite major setbacks

A little more than five years ago, Sudan’s President Omar el-Bashir famously struck a defiant tone when he told the International Criminal Court to take the arrest warrant it had issued against him, “dissolve it in water and drink it”.

Bashir – who faces charges of genocide, crimes against humanity and war crimes allegedly committed in the western region of Darfur – remains in office and has since travelled to several African countries without any attempts being made by state parties to the ICC to arrest him.

In Kenya, President Uhuru Kenyatta and his deputy, William Ruto, are facing similar charges. Both men stand accused of committing war crimes and crimes against humanity in the 2007-8 post-election violence. At least 1,200 people died in the violence and 300,000 were displaced.

Yet the court’s chief prosecutor, Fatou Bensouda, has asked for the indefinite adjournment of the case against Kenyatta, saying she does not have enough evidence to proceed with the trial that is due to resume next month. Key witnesses have pulled out, and the trial has already been delayed several times.

Many now wonder whether the ICC still has relevance and the ability to swiftly dispense justice. Its biggest scalp since its inception in 2002 is the conviction in 2012 of ex-Congolese warlord Thomas Lubanga Dyilo, yet it has pursued more than a dozen cases.

Leaders in Africa – where most of the cases being handled by the court come from – have even accused the ICC of being “racist” as it targets, they say, only Africans.

Opposition to ICC

Kenyatta and other African leaders such as Uganda’s Yoweri Museveni, Rwandan president Paul Kagame and Ivory Coast’s Alassane Ouattara have criticised the court. Last year, Rwanda even tabled a resolution at the UN which sought to suspend the trial of Kenyatta and Ruto. Both men belong to different ethnic groups that had a role in the violence and were senior members of opposing political parties at the time of the unrest but have now become allies because of politics.

The accusation that the ICC targets only Africans does not stand up to close scrutiny. African leaders are solely responsible for the ICC’s focus on their continent. In five of the eight countries where suspects have been indicted – DR Congo, Ivory Coast, Uganda, Mali, and the Central African Republic – the political leaders themselves sought the court’s intervention, encouraged by victims and local rights groups. The notable exceptions are Libya and Sudan whose cases have been referred to the ICC by the UN Security Council.

Bensouda herself has said the court is “not in Africa by choice” and dismisses accusations of racism. “I can cite the cases we have in Africa and how we go there. All of the cases, in fact, except the Kenya case in which the prosecutor used his proprio motu powers [independent ability of the prosecutor to initiate his/her own investigations] … are at the invitation of African states, requesting the ICC’s intervention,” she told Al Jazeera in an interview.

The charge of selective justice is also trumped by the fact that the ICC goes to only those places where it has jurisdiction and only when the crime was committed by a citizen of a state party or on the territory of a state party, or if the case is a referral from the UN Security Council.

Countries such as the United States, whose former leaders have been accused by some of war crimes in places like Iraq, cannot be brought before the ICC because they are not signatories to the Rome Statute that paved the way for the formation of the court.

Despite its shortcomings and the fact that Bashir and the Kenyan leaders remain at large, the ICC still acts as a deterrent. It is precisely because of this that serving leaders are trying to use their influence and power to curtail the powers of the court. They have also proposed that the court should not prosecute serving leaders.

Once leaders know that no one is going to hold them accountable, the end result is impunity. This may not be happening now but it can happen. Last July, African leaders who have accused the ICC of unfairly targeting them deprived the African court of justice and human rights – which should be an alternative to the ICC – of the power to prosecute them for war crimes or crimes against humanity and genocide. If the ICC fails, who will hold leaders accountable?

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